IMPLEMENTATION OF GENERAL ASSEMBLY RESOLUTION 60/251 OF 15 MARCH 2006 ENTITLED HUMAN RIGHTS COUNCIL. Addendum

Transcription

1 UNITED NATIONS A General Assembly Distr. GENERAL A/HRC/4/35/Add.1 13 February 2007 Original: ENGLISH HUMAN RIGHTS COUNCIL Fourth session Item 2 of the provisional agenda IMPLEMENTATION OF GENERAL ASSEMBLY RESOLUTION 60/251 OF 15 MARCH 2006 ENTITLED HUMAN RIGHTS COUNCIL Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises Addendum State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties: an overview of treaty body commentaries* ** * The summary of the present report is circulated in all the languages. The report itself which is contained in the annex to the summary is circulated as received in the language of submission only. ** The present report was submitted late, in order to reflect the most recent information. GE (E)

2 page 2 Summary This addendum contains a summary of key findings and examples from a series of reports prepared on behalf of the Special Representative of the United Nations Secretary-General (the Special Representative) on the issue of human rights and transnational corporations and other business enterprises, appointed pursuant to resolution 2005/69 of the Commission on Human Rights. The reports map the obligations of States to regulate and adjudicate corporate activities under the United Nations core human rights treaties. The addendum outlines the overall trends appearing from treaty-specific reports, and makes preliminary observations as to how the treaty-based human rights machinery may be applied to further strengthen human rights protection and promotion in the context of corporate activity. The treaties, as interpreted by their respective treaty bodies, require States to play a key role in effectively regulating and adjudicating corporate activities with regard to human rights. This role is generally considered as being part of the State duty to protect against abuse by third parties. Treaty body commentaries from the past decade show a trend towards increasing pressure on States to fulfil this duty in relation to corporate activities, regardless of whether the entities in question are privately or publicly-owned or controlled. Moreover, while older treaties are more likely to speak generally about the duties of States to protect against interference with the enjoyment of rights, more recently-adopted treaties explicitly mention private businesses in this respect. All of this indicates the emergence of clear State obligations to prevent and punish corporate abuse, where failure to do so will be considered a violation of treaty obligations. The State duty to protect applies to all rights. However, some rights have been discussed more frequently in relation to the role of States in curbing abuse arising from corporate activities. These include the rights to non-discrimination and equality; minority rights; labour rights; privacy rights; rights related to health and living conditions; the prohibitions related to racial hatred and harmful gender stereotypes and prejudices; and rights enjoyed by indigenous peoples, including cultural rights. The treaty bodies also tend to focus on certain types of companies and business sectors requiring regulation, although this does not detract from the broad duties of States to protect against all abuse by all types of entities. For example, in providing recommendations to particular States in the employment context, the treaty bodies not only refer generally to employers, but have also expressed particular concern about the mining, manufacturing and agricultural industries. The treaty bodies also frequently recommend that States take steps to regulate and adjudicate the acts of mining, extractive, logging and property development companies, especially in the context of resource exploitation in the lands and territories of indigenous peoples. In relation to health, the treaty bodies not only refer to private health-care providers but also to pharmaceutical companies, marketing companies and extractive and manufacturing companies engaging in activities which could threaten food and water resources. Finally, the media and communication networks are discussed with respect to the sexual exploitation of children, and to their role in preventing or spreading prejudices on the basis of race, sex or in relation to persons with disabilities.

3 page 3 States are required to take a variety of measures in order to effectively protect against corporate abuse. They must generally monitor compliance by third parties and in most cases introduce legislative measures to prohibit abuse and proscribe certain behaviour; establish administrative and judicial mechanisms to effectively and impartially investigate all complaints and bring perpetrators to justice; and facilitate the provision of effective remedies, including the provision of reparation to victims, where appropriate. The treaty bodies have also called for measures to increase awareness amongst the private sector of the human rights impact of their activities and to encourage the development by private businesses of codes of conduct in respect of human rights. There is less guidance as to whether the State may fulfil its duty to protect by focusing on the acts of natural persons within the offending business enterprise or whether it is obliged to regulate and adjudicate the business enterprise as an entity. The reason may be that, in line with significant discretion given by the treaties on implementation, the treaty bodies are focused on protection against abuse and of the enjoyment of rights. Nevertheless, newer treaties, in particular the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, seem at a minimum to contemplate liability for business enterprises. Most of the treaty bodies have not discussed whether States are required to exercise extraterritorial jurisdiction over the acts of business enterprises abroad. Indeed, the strongest pattern one can ascertain is a trend towards the treaty bodies recommending that States influence the overseas actions of business enterprises over which they can exercise jurisdiction, although States appear to have wide latitude in deciding which measures should be used to that effect. None of the treaties or treaty bodies suggests that exercising extraterritorial jurisdiction is prohibited, although it is clear that States should act within the limits imposed by the principle of non-intervention under international law. This research has shown that the treaty-based human rights machinery has been paying increasing attention to the regulation of States and adjudication of corporate activities and already plays an important role in elaborating the duties of States. However, even more guidance from the treaty bodies on the scope and content of State obligations arising from the treaties regarding such activities could further support States in the fulfilment of these duties and bring additional clarity to rights-holders and business enterprises. To this end, it would seem beneficial if the treaty bodies were to engage in discussions amongst themselves on this issue, as well as to address more specifically these duties.

4 page 4 Annex REPORT OF THE SPECIAL REPRESENTATIVE OF THE SECRETARY-GENERAL ON THE ISSUE OF HUMAN RIGHTS AND TRANSNATIONAL CORPORATIONS AND OTHER BUSINESS ENTERPRISES STATE RESPONSIBILITIES TO REGULATE AND ADJUDICATE CORPORATE ACTIVITIES UNDER THE UNITED NATIONS CORE HUMAN RIGHTS TREATIES: AN OVERVIEW OF TREATY BODY COMMENTARIES CONTENTS Paragraphs Page Table of acronyms... 6 Introduction I. THE DUTY TO PROTECT II. REFERENCES TO BUSINESS ENTERPRISES A. Treaties B. Treaty body commentaries (i) General comments and recommendations (ii) Concluding observations (iii) Decisions under individual communications C. Trends III. MEASURES STATES ARE REQUIRED TO TAKE A. Monitoring B. Regulation C. Adjudication (i) Investigation (ii) Prosecution leading to sanctions and remedies

5 page 5 CONTENTS (continued) Paragraphs Page (iii) The right to an effective remedy (iv) Reparation D. Natural v. legal persons E. Promotional measures IV. BUSINESS AND RIGHTS SPECIFIC INFORMATION V. EXTRATERRITORIAL RESPONSIBILITY A. Scope B. Main trends VI. PRELIMINARY OBSERVATIONS

6 page 6 Table of acronyms CAT CEDAW CERD CESCR CMW CRC HRC ICCPR ICERD ICESCR ICRMW ICRPD NHRI OPSC SRSG UNC Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Committee against Torture Convention on the Elimination of All Forms of Discrimination against Women; Committee on the Elimination of Discrimination against Women Committee on the Elimination of All Forms of Racial Discrimination Committee on Economic, Social and Cultural Rights Committee on Migrant Workers Convention on the Rights of the Child; Committee on the Rights of the Child Human Rights Committee International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families International Convention on the Rights of Persons with Disabilities National Human Rights Institution Optional Protocol to the CRC on the sale of children, child prostitution and child pornography Special Representative of the Secretary-General Charter of the United Nations

7 page 7 Introduction 1. This addendum to the report of the Special Representative of the United Nations Secretary-General (SRSG) on the issue of human rights and transnational corporations and other business enterprises, appointed pursuant to Commission on Human Rights resolution 2005/69, summarizes information, trends and preliminary findings contained in a series of reports examining States obligations in relation to corporate activity under the United Nations core human rights treaties. 1 Each report in the series is specific to a particular treaty and maps the scope and content of States parties responsibilities to regulate and adjudicate the actions of business enterprises under that treaty, 2 and as clarified by the relevant treaty body The mapping of States obligations under the human rights treaties has been undertaken to assist the SRSG in implementing paragraph (b) of his mandate from the then Commission on Human Rights to elaborate on the role of States in effectively regulating and adjudicating business enterprises with regard to human rights. 4 1 The following treaties were considered as part of this series: the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Rights of the Child (CRC); the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW); and the International Convention on the Rights of Persons with Disabilities (ICRPD). See the individual reports for more detail. All reports will be made available as they are completed at UNSpecialRepresentative. Given time and resource constraints, a summary of the ICRPD (adopted by the General Assembly in December 2006) will supplement the individual treaty reports in the series but it is not analysed in detail here. This Convention, which has not yet entered into force, contains specific references to business. 2 It should be noted that the reports do not discuss direct obligations for corporations - their focus is on State obligations. 3 The human rights treaty bodies are committees of independent experts that monitor implementation of the core international human rights treaties. They are usually established under the provisions of the treaty that they monitor. 4 Commission on Human Rights resolution 2005/69. The SRSG now reports to the Human Rights Council.

8 page 8 3. The reports analyse a representative sample of primary materials associated with each treaty: 5 the treaty provisions; general comments or recommendations by the Committees; concluding observations on States periodic reports; 6 and Opinions on communications as well as Decisions under Early Warning Measures and Urgent Procedures The reports are based on references by the treaties and treaty bodies to States duties to regulate and adjudicate corporate activities. 8 However, as it is less common for the treaty bodies to refer explicitly to corporations, the reports also highlight more general references to State obligations regarding acts by non-state actors. 5. It should be noted that the research focused on States obligations in relation to rights impacted by corporate activities, rather than on corporate entities as possible rights-holders Finally, while basic research has been completed for all of the treaties, not all of the treaty-specific reports have been finalized and this addendum therefore summarizes only preliminary trends The ICRMW report relies to some extent on secondary sources because of the scarcity of primary sources from the recently established Committee on Migrant Workers (CMW). 6 Due to time and resource constraints, the research was limited to examination of concluding observations and decisions from the eight most recent sessions of the various treaty bodies. See each report for information on the specific research methodology used. As the research for most of the treaties was concluded by November 2006 or earlier for some of the treaties, information from the treaty bodies most recent sessions could not always be included. 7 The ICCPR, CAT, ICERD, CEDAW and ICMW all have associated individual complaints mechanisms. CEDAW and CAT also have procedures for urgent inquiries. CERD has an early warning procedure. 8 Drawing on the SRSG s mandate, this report uses regulation to refer to treaty body language recommending legislative or other measures designed to prevent or monitor abuse by business enterprises, and adjudication to refer to judicial or other measures to punish or remediate abuse. 9 The United Nations human rights treaties have not been interpreted to protect the rights of corporate bodies. This is in contrast to e.g. the European Convention on Human Rights, many rights of which have been extended to benefit companies or other (non-state) legal entities. 10 While research on all treaties has been done, at the time of writing, only reports for ICERD, ICRMW, ICCPR and ICESCR have been finalized or are in the process of being finalized. Thus readers should be aware that more specific references to those four treaties in this addendum should not be seen as any indication that the CRC, CAT and CEDAW are less relevant for this project.

9 page 9 I. THE DUTY TO PROTECT 7. The treaty specific reports show that in discussing corporate activity, the treaty bodies are mainly concerned with States obligations to protect rights against interferences occurring in the context of that activity - in other words, States obligations as part of the duty to protect. The treaty bodies describe the duty to protect against human rights violations as being part of the duty to ensure enjoyment of rights. States have positive obligations to prevent and punish third party interference with the enjoyment of rights. 11 Failure to abide by these obligations may amount to a violation of the State s treaty obligations. 12 An examination of the treaties and treaty bodies commentary and jurisprudence (as will be discussed below) confirms that the duty to protect includes preventing corporations - both national and transnational, publicly or privately owned - from breaching rights and taking steps to punish them and provide reparation to victims when they do so. 8. Unlike secondary rules of State attribution, the duty to protect has been interpreted by the treaty bodies to be a substantive duty which will only be breached if the State fails to take steps to prevent and punish abuse. 13 Where the State does act to fulfil its positive obligations by the adoption of all reasonable measures which could be expected in the circumstances but is still unable to prevent interference, it is unlikely to be considered to have breached any treaty obligations - it will not be held responsible for corporate abuse per se. 11 CAT requires instigation, consent or acquiescence of a public official or other person acting in an official capacity to an act of torture in order for the Convention to apply. This means the duty to protect only arises from that Convention where the third party abuse has somehow been instigated, acquiesced in or consented to by the State. However, acquiescence has been interpreted quite broadly so that the State s failure to police abuses by non-state actors may amount to acquiescence. 12 For example, CESCR general comment 18 on the right to work explains that violations of the duty to protect could include the failure to regulate the activities of individuals, groups or corporations so as to prevent them from violating the right to work of others. General comment 18, The Right to Work, UN Doc. E/C.12/GC/18, adopted 24 November 2005 at para. 35. (Hereinafter referred to as CESCR general comment 18.) 13 The secondary rules of State responsibility are beyond the scope of this addendum. Suffice to say that the State may be held accountable where corporations perform public functions or are state-controlled. See the International Law Commission s articles on Responsibility of States for Internationally Wrongful Acts, adopted in November 2001 by the ILC (UN Doc. A/56/ ) and taken note of by the United Nations General Assembly (Res 56/83); both available at PDF/N pdf?OpenElement. For detailed commentary, see James Crawford, The International Law Commission s Articles on State Responsibility (Cambridge: CUP, 2002).

10 page The Human Rights Committee (HRC), which monitors the implementation of the ICCPR, refers specifically to the need to act with due diligence in fulfilling the duty to protect. 14 However, while the Committee on the Elimination against Women (CEDAW) has also adopted the concept, mainly in relation to violence against women, 15 other treaty body references are more piecemeal and do not suggest that the concept is widely used within the United Nations treaty bodies system. 10. The emphasis on the duty to protect does not mean that other State duties usually associated with human rights, such as the duties to respect, promote and fulfil, are irrelevant to strengthening corporate responsibility and accountability. Indeed, the Committee on Economic, Social and Cultural Rights (CESCR) has confirmed that the States parties can violate the duty to respect if they fail to take into account their Covenant obligations when entering into bilateral or multilateral agreements with other States, international organizations and other entities such as multinational entities. 16 States can also be found to breach the duty to respect if State-owned or 14 General comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, adopted 29 March 2004 (80th Session), at para. 8, reproduced in Compilation of General Comments and general recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.7, 12 May 2004, at 192. (Hereinafter referred to as UN Human Rights Compilation ) (General comment hereinafter referred to as HRC general comment 31). The concept of due diligence as applied to human rights law is generally associated with the Inter-American Court of Human Rights decision in Velasquez Rodriguez which confirmed that States could be held responsible for private acts where they fail to act with due diligence to prevent or respond to violations. Velasquez Rodriguez Case, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988) paragraphs The case concerned violations by State sponsored forces but the opinion notes that States have similar obligations to prevent or respond to private acts not directly attributable to the State. See at para. 172: An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the state, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention 15 For example, see general recommendation 19, Violence against women, 11th Session (1992) at para. 9, UN Human Rights Compilation at 246. (Hereinafter referred to as CEDAW general recommendation 19.) The Committee refers to article 2 (e) of the Convention which calls on States to take all appropriate measures to eliminate discrimination by any person, organization or enterprise and provides that under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation. 16 CESCR general comment 18, at para. 33.

11 page 11 controlled enterprises or other companies exercising public functions (in situations where their acts may be attributed to the State) do not refrain from abuse or if the State has laws or policies which facilitate abuse by business enterprises. 17 Furthermore, the treaty bodies suggest that it is important for States to promote human rights awareness for business enterprises. II. REFERENCES TO BUSINESS ENTERPRISES 11. This Part focuses on treaty provisions and treaty body commentaries which explicitly and implicitly refer to State obligations in relation to acts by business enterprises, including particular sectors or industries. Implicit references are considered to be where the treaties or treaty bodies refer generally to the duty to protect against third party abuse and it can be implied that corporate abuse must also be prevented. A. Treaties 12. References to business enterprises in the actual treaties are not very common. When treaties do refer to business, they tend to mention particular sectors rather than generally referring to private business. There are exceptions, however, with the newer treaties being more explicit in their references to business. 13. Of the older treaties, CEDAW is most explicit in referring to business by requiring States in article 2 (e) to take all appropriate measures to eliminate discrimination against women by any enterprise. In relation to more recently adopted treaties, the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (OPSC), adopted in May 2000, requires States to prohibit practices such as the sale of children, child prostitution and child pornography, including taking action against legal persons where appropriate. 18 The ICRPD (which has not yet been researched in detail for the purposes of this project), adopted in December 2006, is the most explicit and refers directly to both private enterprises and private entities. For example, article 4 requires States parties to take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise. Article 9 requires that States ensure private entities offering public services and facilities take into account accessibility to persons with disabilities. 14. The treaties are also increasingly referring to particular sectors, implying that the State must regulate and adjudicate the acts of business enterprises in those sectors. Starting with the older treaties, article 5 (f) of ICERD requires States parties to undertake to prohibit and eliminate 17 See note See art. 3 (4) OPSC. Note that the CRC report will also briefly discuss the Optional Protocol on the Involvement of Children in Armed Conflict (OPAC). It was considered less relevant for this addendum as unlike the OPSC it does not specifically mention legal persons or commercial industries.

12 page 12 racial discrimination in the right of access to places or services intended for use by the general public, including transport, hotels, restaurants, cafes and theatres. As explained further below, the Committee on the Elimination of Racial Discrimination (CERD) has interpreted this provision as requiring States to regulate so as to prevent private owners of such facilities from engaging in racial discrimination. Article 13 (b) of CEDAW seems to necessitate regulation of the banking industry by requiring States to eliminate discrimination in economic and social life, including concerning the right to bank loans, mortgages and other forms of financial credit. Similarly, article 14 (2) (g) requires States to take appropriate measures to ensure equal rights for rural women, including access to agricultural credit and loans and marketing facilities. 15. Article 17 (a) of the CRC requires States to encourage the mass media to disseminate information of social and cultural benefit to children. 19 Furthermore, the Preamble to the OPSC specifically expresses concern about sex tourism and the availability of child pornography on the Internet. It also stresses the importance of closer cooperation between governments and the Internet industry in combating child pornography. 16. There are a number of ways in which the treaties implicitly require States to protect against corporate abuse. First, some of the treaties specifically require States to regulate the acts of third parties or organizations, which - unless explicitly stated otherwise - may include business enterprises, depending on the particular context. For example, article 2 (1) (d) of ICERD requires States to prohibit and end racial discrimination by any persons, group or organization. Article 16 (2) of the ICRMW provides that migrant workers and members of their families are entitled to effective protection by States parties against violence, physical injury, threats and intimidation, whether by public officials or by private individuals, groups or institutions. 17. Second, a treaty may require particular State actions to protect rights which would be difficult to fulfil without regulation or adjudication of the acts of third parties, including business enterprises. For example, a State s duty to ensure the enjoyment of rights under a treaty may require that the State takes appropriate or effective measures, including proscriptive legislation and sanctions, to prevent abuse. 20 Indeed, such directions often concern rights which relate to certain contexts and situations in which business enterprises are so closely involved that it is unlikely the State could fulfil its obligations without regulating these entities. Examples 19 The CRC also requires some monitoring of private social welfare institutions and educational institutions (the latter are also mentioned in CEDAW and ICESCR) but this is not explored in detail here as such institutions are not considered as falling within the mandate s conception of business enterprises. 20 Examples abound from the treaties and appear in the individual treaty reports. Once finalized, all reports will be made available at Gettingstarted/UNSpecialRepresentative.

13 page 13 include provisions dealing with employment situations and access to services without discrimination. 21 The treaty bodies tend to interpret these provisions as including a requirement for States to protect against abuse by all third parties, including business enterprises. B. Treaty body commentaries (i) General comments and recommendations There are no general comments or recommendations focusing solely on States duties to protect rights in the context of corporate activities - rather, they tend to refer to business enterprises as part of discussions regarding various rights or vulnerable groups requiring protection. General comments and recommendations in this context tend to mention specific business sectors, such as the extractive industry or pharmaceutical companies. In addition, many general comments and recommendations refer to protection against corporate abuse in broad terms, for instance by confirming State duties to protect against abuse by the private sector, the labour market, employment, the informal sector, or in relation to privately provided services Beginning with the more explicit references, general comments from CESCR dealing with the right to work, the right to health, and the right to water specifically confirm the State s duty to protect against abuse by business enterprises. 24 In fact, every CESCR general comment since general comment 12 on the right to adequate food in 1999 asserts, usually explicitly, that in order to fulfil the duty to protect States must regulate and adjudicate the acts of business enterprises. 21 See for example OPSC art. 3; CRC art. 3(3), 19 and 32; and ICERD art. 2(1)(d) and 5(f). 22 Only general comments or recommendations relating to ICESCR, ICERD, CEDAW, the CRC and the ICCPR are discussed. The CMW has not yet published any general comments and CAT only has one general comment which is not relevant to this research (see general comment No. 1, Implementation of article 3 of the Convention in the context of article 22, 27 November 1997, contained in annex IX of UN Doc. A/53/44 and UN Human Rights Compilation at These terms are used by CESCR, CERD, CEDAW, and CRC in their general comments. 24 See CESCR general comment 18, at para. 35; general comment 15, The Right to Water (arts. 11 and 12), adopted 26 November 2002, at para. 23, UN Human Rights Compilation at 106 (Hereinafter referred to as CESCR general comment 15); and general comment 14, The Right to the Highest Attainable Standard of Health (Art. 12), adopted 11 August 2000, at para. 35, UN Human Rights Compilation at 86. (Hereinafter referred to as CESCR general comment 14.)

14 page General comments from the Committee on the Rights of the Child (CRC) also highlight that the State has ultimate responsibility for preventing abuse by the private sector, including business enterprises. 25 For example, general comment 5 on measures of implementation confirms that the process of privatization of services can have a serious impact on the recognition and realization of children s rights, 26 and that even where services have been privatized, the State must ensure private sector compliance with the convention. 27 The Committee specifically defines the phrase private sector as including businesses. 28 The most recent general recommendation from CEDAW confirms the Committee s view that States must protect women against discrimination by private enterprises in the public as well as private spheres Some general comments also refer to specific business sectors. For example, CESCR general comment 15 on the right to water focuses on public and private water providers, stressing that the obligation to protect requires States parties to prevent third parties from interfering in any way with the enjoyment to the right to water. Third parties include individuals, groups, corporations and other entities as well as agents acting under their authority. 30 General comment 14 on the right to the highest attainable standard of health 25 See generally: general comment No. 1, The aims of education, 26th Session (2001) at para. 21, UN Human Rights Compilation at 294 (Hereinafter referred to as CRC general comment 1); general comment No. 4, Adolescent health and development in the context of the Convention on the Rights of the Child, 33rd Session (2003), at para. 18, UN Human Rights Compilation at 231 (Hereinafter referred to as CRC general comment 4); general comment No. 5, General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), 34th Session (2003) at paras , UN Human Rights Compilation at 332 (Hereinafter referred to as CRC general comment 5); and general comment No. 7, Implementing child rights in early childhood, UN Doc. CRC/C/GC/7/Rev.1, 20 September 2006 at para. 36. (Hereinafter referred to as CRC general comment 7.) 26 CRC general comment 5, at para. 42. Indeed, in 2002 the Committee held a General Day of Discussion on The private sector as service provider and its role in implementing child rights. General comment 5 incorporates recommendations from that discussion. For the recommendations see: Committee on the Rights of the Child, Report on its thirty-first session, September-October 2002, Day of General Discussion on The private sector as service provider and its role in implementing child rights, paras CRC general comment 5, at paras Id. at para CEDAW general recommendation 25, article 4, paragraph 1, of the Convention (temporary special measures), 30th session (2004), at paras. 7, 29, 31 and 32, UN Human Rights Compilation at CESCR general comment 15, at para. 23.

15 page 15 discusses food and medicine manufacturers and the extractive and manufacturing industries. For example, it provides that the duty to protect includes the duties of States to control the marketing of medical equipment and medicines by third parties 31 and highlights that the State could violate the duty to protect if among other things it fails to regulate the activities of corporations; protect consumers and workers; discourage production, marketing and consumption of tobacco, narcotics and other harmful substances and enact or enforce laws to prevent the pollution of water, air and soil by extractive and manufacturing industries Similarly, the CRC mentions the need to regulate or prohibit information on and marketing of substances such as alcohol and tobacco, particularly when it targets children and adolescents. 33 And in general comment 28 on the equality of rights between men and women, the HRC said that States should take the lead in implementing all measures necessary to eliminate discrimination against women in all fields, for example by prohibiting discrimination by private actors in areas such as employment, education, political activities and the provision of accommodation, goods and services Among other things, CERD has focused on companies involved in major infrastructure and extractives projects affecting indigenous peoples. For example, general recommendation 23 on the rights of indigenous peoples notes that indigenous peoples have lost resources to commercial companies and calls for recognition and protection of indigenous people s rights to own, develop, control and use their communal lands, territories and resources. 35 Where deprivation of land or resources does occur, States should take steps to return those lands and territories. 36 The implication is that States are obliged to regulate and adjudicate the acts of commercial companies to prevent abuse of rights enjoyed by indigenous peoples and to ensure effective remedies, including reparation, where necessary. 24. Further, CERD general recommendation 27 on discrimination against the Roma notes that States should encourage awareness among professionals of all media regarding the need to avoid dissemination of prejudicial material and even recommends that States encourage 31 CESCR general comment 14, at para Id. at paras. 35 and CRC general comment 4, at para HRC general comment 28, general comment No. 28: article 3 (The equality of rights between men and women), adopted 29 March (68th Session) at para. 31, UN Human Rights Compilation at 178. (Hereinafter referred to as HRC general comment 28.) 35 General recommendation XXIII on the rights of indigenous peoples, 51st Session (1997), at paras. 3 and 5, UN Human Rights Compilation at 215. (Hereinafter referred to as CERD general recommendation 23.) 36 CERD general recommendation 23, at para. 5.

16 page 16 self-monitoring by the media, including codes of conduct to avoid racial discrimination or biased language. 37 CERD general recommendation 29 on article 1 (1) of the Convention recommends that States, as appropriate, adopt measures against public bodies, private companies and other associations that investigate the descent background of applicants for employment CEDAW general recommendations reference States duties to prevent abuse by private health-care providers, 39 private organizations, 40 private sector agencies, 41 enterprises (including those owned by family members), 42 the labour market 43 and the media. 44 The CRC general comments contain directions to States regarding the mass media and the working environment (including the entertainment industry) Finally, as suggested above, general comments and recommendations also confirm more generally that States have duties to protect against abuse by non-state actors, describing such 37 General recommendation XXVII on discrimination against Roma, 57th Session (2000) at paras. 37 and 40, UN Human Rights Compilation at 219. (Hereinafter referred to as CERD general recommendation 27.) 38 General recommendation XXIX on article 1, paragraph 1, of the Convention (Descent), 61st Session (2002) at para. 38, UN Human Rights Compilation at 226. Other examples can be found in the ICERD report, available at 39 General recommendation 24, article 12 of the Convention (women and health), 20th Session (1999), at para. 14, UN Human Rights Compilation at 274. (Hereinafter referred to as CEDAW general recommendation 24.) 40 Id. at paras. 15, 31 (d) and (e). See also general recommendation 23, Political and public life, 16th Session (1997) at para. 29, UN Human Rights Compilation at CEDAW general recommendation 24, at para CEDAW general recommendation 19, at para. 9. See also CEDAW general recommendation 16, Unpaid women workers in rural and urban family enterprises, 10th Session (1991) at paras. 2 and 5 (c), UN Human Rights Compilation at CEDAW general recommendation 19, at paras. 24 (j) and 24 (t). See also CEDAW general recommendation 13, Equal remuneration for work of equal value 8th Session (1989) at para. 3, UN Human Rights Compilation at 240; CEDAW general recommendation 12, Violence against women, 8th Session (1989) at para. 1, UN Human Rights Compilation at CEDAW general recommendation 19, at para. 24 (d). 45 In relation to state duties regarding the mass media, see: CRC general comment 1, at para. 21; in relation to the working environment see: CRC general comment 4, at para. 18; in relation to the entertainment industry, see: CRC general comment 7, at para. 36.

17 page 17 actors in a number of ways, including third parties, private actors, private entities, legal persons and private agencies. Unless stated otherwise, the treaty bodies use of these terms implies that States must take action against abuse by a broad range of non-state actors, including business enterprises. 27. A good example in this respect is the HRC s most recent general comment 31 on the nature of the general legal obligation imposed on States parties to the Covenant, which contains strong wording about the duty to protect against violations by private persons or entities. 46 It says that the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities 47 The HRC confirms that States could breach their Covenant obligations where they permit or fail to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. 48 Other general comments from the HRC also implicitly refer to corporations by confirming the State s duty to protect against private actions and abuses by private agencies, legal persons and private bodies. 49 (ii) Concluding observations 28. Concluding observations contain the treaty bodies responses to States parties periodic reports on their compliance with the relevant treaty. They provide general guidance as well as recommendations on specific issues of concern, which may relate to State obligations regarding the activities of particular businesses or sectors operating in the State. 29. When issues before the treaty bodies involve activities related to business activity, concluding observations often contain general expressions of concern about such activities, rather than specifying whether or how States are expected to regulate or adjudicate the entities behind those activities. 50 The Committees focus is on the protection of rights - whether the 46 HRC general comment No. 31, at para Id. 48 Id. 49 In relation to States duties regarding acts by natural or legal persons and private individuals or bodies, see HRC general comment 16, article 17 (Right to privacy), 8 April 1988 (32nd Session) at paras. 1 and 10, UN Human Rights Compilation at 142; in relation to acts by private persons or bodies see general comment 18, Non-discrimination, 10 November 1989 (37th Session) at para. 9, UN Human Rights Compilation at 146; in relation to acts by private agencies in all fields, the private sector and private practices see HRC general comment 28, at paras. 4, 20 and This should be contrasted to discussions about labour rights, in which the Committees regularly provide directions as to which measures which must be taken to protect against abuse by employers.

18 page 18 violation is caused by a State organ, a business entity or any other private actor seems less relevant than the result (the protection and promotion of human rights). 51 Yet expressions of concern from the Committees about corporate activities strongly imply that in order to achieve this result, States are expected to take steps to regulate and adjudicate the acts of business enterprises involved in such activities. 30. The following table provides examples of the various types of business enterprises/ sectors referred to in concluding observations. 52 The fact that the Committees have referred to particular sectors should not be taken as a sign that they do not consider States responsible for protecting against abuse by other types of enterprises. On the contrary, Committees may examine States obligations in relation to any corporate act in any field of activity. Treaty ICCPR ICESCR ICERD CEDAW CRC, OPSC ICRMW CAT Sectors/industries Labour market, commercial and agricultural sectors (including the cotton industry), logging and mining concessions and media. Labour market, private prisons, natural resource extracting companies (including transnational companies), mineral, timber and other commercial interests, development projects, private social security schemes and funds, private health-care system and private organizations using public funds. Extractive and forestry industries, transnational corporations, large business ventures (particularly in indigenous areas), media and communication networks, private employers, private banks, housing agencies, hotels, restaurants and cafés. Private companies, public companies, private enterprises, business, labour market, private sector, media and advertising agencies, credit facilities, media, service sector, agricultural sector and informal sector, maquila (textile) industries, sex industry, public joint stock companies and private industry. Radio and television broadcasters, educational institutions, childcare professionals, institutions for mental illness, legal persons, Internet service providers, private adoption houses, private institutions, labour market, informal sector (including agriculture, small scale family enterprises and domestic service) and private sector. Agricultural sector Privately operated detention facilities 51 Although the conditions of finding State responsibility may differ depending on the source of the violation. 52 See individual reports for exact references.

19 page Many concluding observations also refer generally to the need to protect against abuse by employers, especially in order to prevent and punish forced labour, unsafe working conditions and discrimination. Most of these recommendations are drafted broadly so that they require action against both private and public employers. 32. Further, concluding observations from CESCR, CERD and CEDAW in particular tend to express concern about major infrastructure development and extractives projects affecting indigenous peoples. While the Committees do not always specify that the State should take steps to regulate and adjudicate the activities of companies involved in such projects, the implication appears to be that they should do so in order to address the Committees concerns Concluding observations also highlight that States are responsible for abuses associated with both privately and publicly run detention facilities. 54 (iii) Decisions under individual communications 34. The ICCPR, CAT, ICERD, CEDAW and ICRMW all have associated individual complaints mechanisms for alleged violations by a State party of rights under its jurisdiction Both the HRC and CERD have shown a willingness to declare admissible communications concerning a State s failure to protect against abuse by business enterprises. 53 For example, CERD s concluding observations in relation to the protection of indigenous peoples apply to cases of both public and private extractive companies active in indigenous areas. Even when private mining companies seem to be the main cause of environmental pollution in indigenous areas, CERD emphasizes the State obligation to remedy any health or environmental damage in this respect, without mentioning the need to adjudicate the company. This does not necessarily mean that States should not adjudicate companies. It means that what is most important is the protection of rights and redress for any violation thereof. See ICERD Report, Part III(A), available at Gettingstarted/UNSpecialRepresentative 54 In relation to concerns about violations of the right to life and prohibition against torture by contractors acting on behalf of the state, see HRC, concluding observations, United States, UN Doc. CCPR/C/USA/CO/3/Rev.1, 18 December 2006, at para. 14; CAT concluding observations, UN Doc. CAT/C/USA/CO/2, 25 July 2006, at para. 36. In relation to working conditions in private prisons, see for example, CESCR: concluding observations, Luxembourg, UN Doc. E/C.12/1/Add.86, 23 May 2003, at paras. 20 and At the time of writing, analysis of the CEDAW and CAT decisions remained incomplete so the trends in this section only apply to the ICCPR (under the First Optional Protocol) and ICERD procedures. The ICRMW procedure is not yet operative. References to ICERD trends relate to Individual Communications and Decisions under Early Warning Measures and Urgent Procedures.

20 page 20 Indeed, the HRC has rejected arguments from States that such communications are inadmissible, making it clear that the State may be held responsible under the First Optional Protocol for failing to protect against third party abuse The HRC communications concerning business enterprises tend to involve discrimination by companies in their roles as employers or complaints regarding interference with the rights of indigenous peoples by mining, logging and property development companies. 57 Similarly, CERD communications in this area mainly relate to racial discrimination by various private companies, such as textile, construction or insurance companies, and in relation to access to services, such as banking/lending services, recreational venues and private housing agencies. 58 Further, Decisions under Early Warning Measures and Urgent Procedures have expressed concern about large scale mining operations and companies, including multinationals. C. Trends 37. The above analysis highlights the ever-increasing recognition by the treaty bodies of States obligations to protect against human rights abuses arising from corporate activities, especially in the last five to ten years. For example, of the eight CESCR general comments which explicitly refer to business enterprises, it is the four most recent (with a date range of ) which most strongly identify a duty to protect in relation to corporations. And nearly all of the Committee s general comments since 1999 discuss the duty to protect as requiring State action against abuse by third parties. Further, the HRC s most explicit statement on the duty to protect in relation to private entities comes from The treaty body commentaries together with newly adopted treaties expressly mentioning State duties regarding business activities indicate the emergence of a concrete duty for States to prevent and punish a wide range of corporate abuse, where failure to do so will be considered a violation of treaty obligations. 56 See individual report for the ICCPR and Arenz et al v. Germany, communication 1138/2001, UN Doc. CCPR/C/80/D/1138/2002, 29 April 2004, at para 8.5 and Cabal and Pasini Bertran v. Australia, communication 1020/2001, UN Doc. CCPR/C/78/D/1020/2001, 19 September 2003, at para. 7.2, where the HRC commented on the admissibility of claims relating to private abuse even though the state itself did not appear to base admissibility challenges on this issue. 57 See for example Love et al. v. Australia, communication 983/2001, UN Doc. CCPR/C/77/983/2001, 28 April 2003; Hopu and Bessert v. France, communication 549/1993, UN Doc. CCPR/C/60/D/549/1993/Rev.1, 29 December 1997; Ilmari Länsman et al. v. Finland, communication 511/1992, UN Doc. CCPR/C/52/D/511/1992, 8 November 1994; and Chief Bernard Ominayak and the Lubicon Lake Band v. Canada, communication 167/1984, UN Doc. CCPR/C/38/D/167/1984, 10 May See ICERD report available at UNSpecialRepresentative.